Match Group, LLC v. Bumble Trading Inc.

Western District of Texas, txwd-6:2018-cv-00080

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0 EXHIBIT 2 Case Talent Broker 6:18-cv-00080-ADA-JCM Tech. Document LLC v. Musical.ly, Inc., Slip Copy (2018) 34-2 Filed 11/08/18 Page 2 of 10 2018 WL 3019641 Patent") and 8,630,894 (the " '894 Patent") (together, the "Patents–in–Suit") through their manufacture, use, sale, 2018 WL 3019641 importation, and/or offering for sale of their "musical.ly" Only the Westlaw citation is currently available. video social network application. (FAC ¶¶ 13, 15, and 21.) United States District Court, C.D. California. TALENT BROKER TECH. LLC The '894 Patent is a continuation-in-part of U.S. v. Application Ser. No. 13/015,031 which resulted in the MUSICAL.LY, INC. et al. issuance of the '154 Patent. Both Patents are titled "Method and System for Searching for, and Monitoring Case No.: CV 17–08532 SJO (MRWx) Assessment of, Original Content Creators and the | Original Content Thereof," and share a closely related Filed 05/22/2018 specification. (See FAC, Exs. A & B.) The Patents–in– Suit are directed to a system and method for "hierarchical Attorneys and Law Firms talent assessment" of "original content" such as songs, music videos, or performances. (See FAC, Exs. A & B.) Darin T. Beffa, Beffa Law, Los Angeles, CA, Peter J. The FAC asserts four of the claims of the '154 Patent— Corcoran, III, Corcoran IP Law PLLC, Texarkana, TX, claims 12, 13, 18, and 19—of which claims 12 and 18 are for Talent Broker Tech. LLC. independent. (FAC, Ex. C.) Plaintiff asserts six claims of Matthew G. Berkowitz, Shearman and Sterling LLP, the '894 Patent—claims 1–4, 7, and 9—of which claims 1 Menlo Park, CA, for Musical.ly, Inc. et al. and 9 are independent. The independent Asserted Claims read in their entirety: 12. A system for providing assessment information PROCEEDINGS (in chambers): ORDER comprising: GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S SECOND [a] a controller including a processor and a memory, AMENDED COMPLAINT [Docket No. 40] wherein the processor is operable to: S. JAMES OTERO, UNITED STATES DISTRICT [b] receive assessment information on a plurality JUDGE of assessable elements, provided over a communication network to the controller and *1 This matter is before the Court on which is based on assessment of the assessable Defendants Musical.ly, Inc.'s and Beijing Byte Dance elements by a plurality of assessors, wherein the Telecommunications Co., Ltd.'s (together, "Defendants") assessment information indicates a voting score Motion to Dismiss Plaintiff's Second Amended among a plurality of voting scores, wherein a first Complaint ("Motion"), filed March 28, 2018. Plaintiff assessable element is available to be voted on with a Talent Broker Tech., LLC ("Talent" or "Plaintiff") voting score by a first assessor based on a category opposed the Motion ("Opposition") on April 16, 2018, to of the first assessor among a plurality of categories which Defendant replied ("Reply") on April 23, 2018. The in a hierarchy and an average voting score attained Court found this matter suitable for disposition without for the first assessable element among a plurality oral argument. See Fed. R. Civ. P. 78(b). For the reasons of the assessable elements over a predetermined stated below, the Court GRANTS Defendants' Motion. time interval for voting by assessors having a lower category in the hierarchy than the first assessor; I. FACTUAL AND PROCEDURAL HISTORY *2 [c] search, using the received assessment Plaintiff commenced the instant patent litigation on information, responsive to a request to search for November 22, 2017 and filed its First Amended an assessable element having a higher average Complaint for Patent Infringement ("FAC") on voting score than other of the assessable elements, December 20, 2017. (See Compl., ECF No. 1; FAC, ECF to obtain a search result, wherein the request No. 16.) In its FAC, Plaintiff alleges that Defendants includes as a search condition at least one of directly infringe U.S. Patent Nos. 8,510,154 (the " '154 © 2018 Thomson Reuters. No claim to original U.S. Government Works. 1 Case Talent Broker 6:18-cv-00080-ADA-JCM Tech. Document LLC v. Musical.ly, Inc., Slip Copy (2018) 34-2 Filed 11/08/18 Page 3 of 10 2018 WL 3019641 (i) a characteristic of an assessable element, (i) an indication of a characteristic of the one assessable element; (ii) a category of the assessor for which the assessment information indicates voting for an (ii) a selectable item to enable rendering or assessable element among the assessable elements acquisition of the one assessable element; and to which the request to search is directed, and (iii) a selectable item to enable voting with a voting (iii) voting score status; and score for the one assessable element. [d] provide the search result indicating, for an ('154 Patent col. 24:13–40 [emphasis added].) assessable element returned as the search result, 1. A system for communicating content item information (i) a voting score status, the voting score status associated with a hierarchical talent assessment being based on voting by the assessors in at least process to an assessor having a portable electronic one predetermined category of the plurality of device wirelessly in communication with the system, categories, and the system comprising: (ii) at least one characteristic of the assessable [a] a controller including a processor, wherein the element identified from the search. processor is operable to: ('154 Patent col. 22:53–23:20 [emphasis added].) [b] determine whether a geographic designation set as criteria for communicating selected content 18. A system for providing assessment information item information to an assessor among a plurality comprising: of assessors registered with the system matches a geographic designation included in registration [a] a controller including a processor and a memory, information of any of the assessors; wherein the processor is operable to: [c] control transmission of a notification to a first [b] receive assessment information on a plurality portable electronic device of a first assessor among of assessable elements, which is provided over a the assessors, the first device being wirelessly in communication network and based on assessment communication with the system, when the set of the assessable elements by a plurality of geographic location matches a geographic location assessors, wherein the assessment information included in the registration information of the first indicates a voting score among a plurality of assessor and a selected content item included in the voting scores, wherein a first assessable element selected content item information is available for is available to be voted on with a voting score assessment by the first assessor in accordance with by a first assessor based on a category of the the hierarchical talent assessment process, first assessor among a plurality of categories in a hierarchy and an average voting score attained *3 [d] wherein the notification causes display, on for the first assessable element among a plurality a display screen of the first device, of indicia of the assessable elements over a predetermined indicating receipt of the notification in association time interval for voting by assessors having a lower with an icon representative of an integrated category in the hierarchy than the first assessor; application of the first device, the integrated and application being operable to display information indicating the selected content item is available [c] responsive to a request to search having voting for assessment when the integrated application is score result status as a search condition and using selected by the first assessor following receipt of the the assessment information, control display, in notification at the first device, and substantially real time, on a display screen of a voting score result for at least one of the assessable [e] wherein, in accordance with the hierarchical talent elements with at least one of assessment process, the selected content item is © 2018 Thomson Reuters. No claim to original U.S. Government Works. 2 Case Talent Broker 6:18-cv-00080-ADA-JCM Tech. Document LLC v. Musical.ly, Inc., Slip Copy (2018) 34-2 Filed 11/08/18 Page 4 of 10 2018 WL 3019641 available to be voted on with a voting score a hierarchy and an average voting score attained by the first assessor based on a category of the for the selected content item among a plurality first assessor among a plurality of categories in of content items available for voting thereon by a hierarchy and an average voting score attained a plurality of the assessors over a predetermined for the selected content item among a plurality time interval for voting by assessors having a lower of content items available for voting thereon by category in the hierarchy than the first assessor; a plurality of the assessors over a predetermined and time interval for voting by assessors having a lower category in the hierarchy than the first assessor; [e] update monitoring information for the selected and content item and the first assessor based on assessment information concerning the selected [f] update monitoring information for the selected content item provided by the first assessor using the content item and the first assessor based on website interface. assessment information concerning the selected content item included in a response transmitted ('894 Patent col. 28:4–38 [emphasis added].) from the first device using the integrated application. On March 8, 2018, the Court granted Defendants' Motion to Dismiss Talent's First Amended Complaint, ('894 Patent col. 26:66–27:43 [emphasis added].) finding that the claims of the '154 and '894 Patents were directed to patent-ineligible subject matter. (Minute 9. A system for communicating content item information Order ("Order"), ECF No. 38.) Plaintiff was nevertheless associated with a hierarchical talent assessment given leave to amend its complaint to "identify any process to an assessor, the system comprising: genuine material facts that both accord with the intrinsic record and support a finding that the Asserted [a] a controller including a processor, wherein the Claims constitute something more than 'well-understood, processor is operable to: routine, conventional activity.' " (Order 11.) Ten days [b] determine whether a geographic designation set later, on March 18, 2018, Talent filed its Second Amended as criteria for communicating selected content Complaint, asserting the same patents and causes item information to an assessor among a plurality of action as the FAC. (Second Amended Complaint of assessors registered with the system matches ("SAC"), ECF No. 39.) Defendants' current Motion a geographic designation included in registration followed shortly thereafter. information of any of the assessors; [c] control display, on a website interface associated II. DISCUSSION with and accessed over a communication network *4 In their Motion, Defendants again argue that the by a first assessor among the assessors, of claims of the '154 and '894 Patents are not eligible for an indication that the selected content item is patent protection under 35 U.S.C. § 101 ("Section 101") available for assessment when the set geographic because the asserted claims, "on their face, are directed location matches a geographic location included to the abstract idea of organizing, differentiating, and in the registration information of the first assessor retrieving information." (Mot. 1, ECF No. 40)(citing and a selected content item included in the Order 9.) In their original motion to dismiss, Defendants selected content item information is available for argued that neither the claims of the '154 patent— assessment by the first assessor in accordance with directed to "receiving voting information, searching the the hierarchical talent assessment process, voting results, and providing those results"—nor those of the '894 Patent—directed to "sending transmission of a [d] wherein, in accordance with the hierarchical talent notification to a portable device when certain conditions assessment process, the selected content item is are met"—describe patentable subject matter, nor do available to be voted on with a voting score they provide any transformative inventive concept. (Mot. by the first assessor based on a category of the 1, 18–19.) They now assert that Plaintiff's additional first assessor among a plurality of categories in allegations in the SAC do not create any genuine factual © 2018 Thomson Reuters. No claim to original U.S. Government Works. 3 Case Talent Broker 6:18-cv-00080-ADA-JCM Tech. Document LLC v. Musical.ly, Inc., Slip Copy (2018) 34-2 Filed 11/08/18 Page 5 of 10 2018 WL 3019641 or claim construction issues that would warrant the action to none." Funk Bros. Seed Co. v. Kalo Inoculant Co., continuing beyond the motion to dismiss stage. 333 U.S. 127, 130 (1948). Thus, "the concern that drives this exclusionary principle [is] one of pre-emption." Alice Plaintiff, for its part, identifies three improvements Corp. Pty. v. CLS Bank Int'l, 134 S. Ct. 2347, 2354 (2014) that raise material questions as to whether the the (citation omitted). Consequently, the Supreme Court has hierarchical talent assessment process ("HTAP") is "well- required that "[i]f there is to be invention from such a understood, routine, conventional activity." The first is discovery, it must come from the application of the law of "that hierarchical filtering saves memory and processing nature to a new and useful end." Funk Bros., 333 U.S. at resources in voter computers 15 and content creator 130. These principles have been held to apply with equal computers 10." (Opp'n 2, ECF No. 41.) The second force to product and process claims. Gottschalk v. Benson, alleged improvement is that "the HTAP software provides 409 U.S. 63, 67–68 (1972). remote accessibility and filtering by not needing to install the software on every voter computer 16 and Alice Corp. v. CLS Bank ("Alice") represents the Supreme content creater computer 10." (Opp'n 2.) The third Court's latest attempt to clarify how courts should apply and final improvement identified by Plaintiff is the these difficult principles. In Alice, the Supreme Court "increased efficiency of network traffic and decreased expanded on the two-step approach for resolving Section burden on network infrastructure [created] by reducing 101 issues first articulated in Mayo Collaborative Servs. v. the volume of content-related items made available for Prometheus Labs., Inc., 132 S. Ct. 1289, 1296–97 (2012). voting in subsequent voting rounds." (Opp'n 2.) These, First, a court must "determine whether the claims at issue Plaintiff contends, transform the otherwise abstract are directed to one of those patent-ineligible concepts." process described in the patent into patent-eligible subject Alice, 134 S. Ct. at 2355 (citing Mayo, 132 S. Ct. at matter. 1296–97). If so, then the court must ask "[w]hat else is there in the claims," which requires consideration of With the parties' arguments laid out, the Court now "the elements of each claim both individually and 'as an examines the applicable legal standards. ordered combination' to determine whether the additional elements 'transform the nature of the claim' into a patent- eligible application." Id. (citing Mayo, 132 S. Ct. at 1297– A. Section 101 Analytical Framework 98). In this second step, the court must "search for an "Section 101 defines the subject matter that may be 'inventive concept'—i.e., an element or combination of patented under the Patent Act." Bilski v. Kappos, 561 U.S. elements that is 'sufficient to ensure that the patent in 593, 601 (2010). Section 101 reads in its entirety: "Whoever practice amounts to significantly more than a patent upon invents or discovers any new and useful process, machine, the [ineligible concept] itself.' " Id. (citing Mayo, 132 S. manufacture, or composition of matter, or any new and Ct. at 1294). This two-step analytical framework has been useful improvement thereof, may obtain a patent therefor, labeled the "Alice/Mayo test" or simply the "Alice test." subject to the conditions and requirements of this title." 35 U.S.C. § 101. "Section 101 thus specifies four independent *5 Identifying whether a claim is "directed to an abstract categories of inventions or discoveries that are eligible idea" under step one of the Alice/Mayo test is not always a for patent protection: processes, machines, manufactures, simple undertaking. Although there is some disagreement and compositions of matter." Bilski, 561 U.S. at 601. among courts as to how expansively a claim should be examined at Alice/Mayo step one, the Federal Circuit Although acknowledging that "[i]n choosing such has instructed that the " 'directed to' inquiry applies expansive terms ... Congress plainly contemplated that a stage-one filter to claims, considered in light of the the patent laws would be given wide scope," the Supreme specification, based on whether 'their character as a whole Court long ago identified three exceptions to Section is directed to excluded subject matter.' " Enfish, 822 101: "laws of nature, physical phenomena, and abstract F.3d at 1335 (quoting Internet Patents Corp. v. Active ideas." Diamond v. Chakrabarty, 447 U.S. 303, 308–09 Network, Inc., 790 F.3d 1343, 1346 (Fed. Cir. 2015)); (1980). Although these exceptions are not required by the see also Cal. Inst. Tech. v. Hughes Commc'ns, Inc., 59 F. statutory text, they are consistent with the idea that certain Supp. 3d 974, 991–92 (C.D. Cal. 2014) (requiring that a discoveries "are part of the storehouse of knowledge of court "identify the purpose of the claim—in other words, all men" and are "free to all men and reserved exclusively © 2018 Thomson Reuters. No claim to original U.S. Government Works. 4 Case Talent Broker 6:18-cv-00080-ADA-JCM Tech. Document LLC v. Musical.ly, Inc., Slip Copy (2018) 34-2 Filed 11/08/18 Page 6 of 10 2018 WL 3019641 what the claimed invention is trying to achieve—and ask computer components, without providing a specific whether that purpose is abstract," making the Alice/Mayo technical solution beyond simply using generic computer step 1 "a sort of 'quick look' test, the object of which is concepts in a conventional way." 827 F.3d 1341, 1352 to identify a risk of preemption and ineligibility"); DDR (Fed. Cir. 2016). Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1258– 59 (Fed. Cir. 2014) (although blurring steps one and two in 1 In particular, the Supreme Court in Diehr explained analyzing internet-based patent claims, finding the claims that the claimed contribution to the art was the step of not patent-ineligible where they "specify how interaction "constantly measuring the actual temperature inside a with the Internet are manipulated to yield a desired result rubber molding press" used to create synthetic rubber —a result that overrides the routine and conventional products. Diehr, 450 U.S. at 206. sequence of events ordinarily triggered by the click of With this high-level understanding of the purpose and the hyperlink"). It is "relevant to ask whether the claims limits of Section 101, the Court addresses whether a are directed to an improvement to computer functionality motion to dismiss may properly be brought on Section 101 versus being directed to an abstract idea, even at the first grounds. step of the Alice analysis," which can entail reviewing both the claim language and the specification. Enfish, 822 F.3d at 1335–36. B. The Appropriateness of Ruling on Section 101 Motions at the Pleadings Stage and the Defendant's If the claim is directed to an abstract idea, the Burden Court must then determine whether the specific claim Federal Rule of Civil Procedure 12(b)(6) permits a party elements, considered both individually and "as an ordered to move to dismiss an action for "failure to state a combination," "transform the nature of the claim" into a claim upon which relief can be granted" if "made before patent-eligible invention. Alice, 134 S. Ct. at 2355 (quoting pleading if a responsive pleading is allowed." Fed. R. Mayo, 132 S. Ct. at 1297). In Alice, the Supreme Court Civ. P. 12(b)(6). "Patent eligibility under [Section] 101 considered whether "[t]he introduction of a computer is a question of law that may, in appropriate cases, into the claims" directed toward the abstract idea of be decided on the pleadings without the benefit of intermediated settlement was sufficient to "transform the a claim construction hearing." Modern Telecom Sys. nature of the claim" by adding an "inventive concept." LLC v. Earthlink, Inc., No. CV 14–0347 DOC, 2015 Id. at 2357. The Supreme Court held that it did not, WL 1239992, at *6 (C.D. Cal. Mar. 17, 2015) (citing and made clear that "the mere recitation of a generic Content Extraction & Transmission LLC v. Wells Fargo computer cannot transform a patent-ineligible abstract Bank, Nat. Ass'n, 776 F.3d 1343, 1349 (Fed. Cir. 2014) idea into a patent-eligible invention." Id. at 2358. "Nor (affirming district court's decision to grant motion to is limiting the use of an abstract idea 'to a particular dismiss based on patent-ineligible subject matter under technological environment' " sufficient to impart patent- Section 101 without having a claim construction hearing). eligibility. Id. (quoting Bilski, 561 U.S. at 610–11). In its Nonetheless, "like many legal questions, there can be discussion, the Supreme Court in Alice distinguished an subsidiary fact questions which must be resolved en route earlier case, Diamond v. Diehr, in which the Court held to the ultimate legal determination." Aatrix Software, Inc. that a computer-implemented process for curing rubber, v. Green Shades Software, 2017–1452, 2018 WL 843288 which employed a "well-known" mathematical equation, at *5 (Fed. Cir. February 14, 2018). For this reason, was nevertheless patent-eligible because it used that "it will ordinarily be desirable—and often necessary—to equation in a process designed to solve a technological resolve claim construction disputes prior to a [Section] problem in "conventional industry practice." 1 Alice, 101 analysis, for the determination of patent eligibility 134 S. Ct. at 2358 (citing Diehr, 450 U.S. at 177–78). requires a full understanding of the basic character of the Moreover, the Federal Circuit held in Bascom Global claimed subject matter." Bancorp Servs., L.L.C. v. Sun Internet Services, Inc. v. AT&T Mobility LLC that "an Life Assurance. Co. Can. (U.S.), 687 F.3d 1266,1273–74 inventive concept can be found in the non-conventional (Fed. Cir. 2012). and non-generic arrangement of known, conventional pieces," particularly where the invention claimed is more *6 "Although the clear and convincing evidence than the implementation of an abstract idea "on generic standard is not applicable" to a Section 101 motion © 2018 Thomson Reuters. No claim to original U.S. Government Works. 5 Case Talent Broker 6:18-cv-00080-ADA-JCM Tech. Document LLC v. Musical.ly, Inc., Slip Copy (2018) 34-2 Filed 11/08/18 Page 7 of 10 2018 WL 3019641 brought pursuant to Federal Rule of Civil Procedure 12(b) Patent are directed to "the abstract idea of transmitting (6), the movant "still bear[s] the burden of establishing information at particular times and displaying it." (Init. that the claims are patent-ineligible under [Section] 101." Mot. 13.) Plaintiff responded that these characterizations Modern Telecom, 2015 WL 1239992 at *8. "Additionally, oversimplify the language of the claims at issue and in applying [Section] 101 jurisprudence at the pleading proceeded to quote and highlight large portions of stage, the Court construes the patent claims in a the claim language. (Opposition to Motion to Dismiss manner most favorable to Plaintiff." Id. (citing Content ("Initial Opposition") 8–13, ECF No. 22.) Plaintiff Extraction, 776 F.3d at 1349). further argued that the Patents–in–Suit, like the patent at issue in Enfish, are directed to specific improvements in the functioning of networked computer systems. C. Analysis (Init. Opp'n 13.) The basis of this improvement is Having determined that the Court can rule on Defendants' not hardware, but rather the use of a "sophisticated Motion at the pleadings stage, the Court now applies the hierarchical talent assessment process" to "facilitat[e] Alice/Mayo test to determine whether the claims of the the objective assessment of original content found only '154 and '894 Patents are patent-eligible. As Plaintiff has on the internet." (Init. Opp'n 13.) Despite Plaintiff's raised no new arguments regarding the abstract nature of argument to the contrary, the Court finds that the claims its claims, the Court recites its previous findings regarding of the Patents–in–Suit are directed to the abstract idea Step 1 of the Alice/Mayo test. of organizing, differentiating and retrieving information. Unlike the claims at issue in Enfish or DDR holdings, the claims of the '154 and '894 Patents are not "directed to 1. Step 1: The Claims Are Directed a specific improvement to the way computers operate," to a Patent–Ineligible Abstract Idea nor do they "specify how interactions with the Internet are manipulated to yield a desired result," but instead The first step in determining whether a claim satisfies simply describe a "task[ ] for which a computer is used Section 101 is determining whether the claim at issue in its ordinary capacity." Enfish, 822 F.3d at 1336; DDR is directed to a "patent-ineligible concept" such as an Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1258– abstract idea. Alice, 134 S. Ct. at 2355. Under the first 59 (Fed. Cir. 2014). step of the Alice/Mayo test, "the court must identify the purpose of the claim—in other words, what the claimed *7 A review of the exemplary independent claims invention is trying to achieve—and ask whether that supports this finding. Claim 1 of the '894 Patent, for purpose is abstract." Cal. Inst. Tech., 59 F. Supp. 3d at example, recites a "system for communicating content 991. To accomplish this task, the Court must "appl[y] item information," through the use of a processor a stage-one filter to claims, considered in light fo the configured to: (1) determine a geographic designation; (2) specification, based on whether 'their character as a whole control transmission of a notification to a "first assessor"; is directed to excluded subject matter.' " Enfish, 822 (3) display an notification that content is ready to be F.3d at 1335 (quoting Internet Patents Corp., 790 F.3d at assessed; (4) make the content available for assessment; 1346). Moreover, because "all improvements in computer- and (5) update the information for the content based on related technology are inherently abstract," it is "relevant the assessment. ('894 Patent col. 26:66–27:43.) Thus, the to ask whether the claims are directed to an improvement claim describes the abstract process of providing content to computer functionality versus being directed to an to reviewers who then assess and rate it. The fact that abstract idea, even at the first step of the Alice analysis." this process is carried out using generic "processors" and Id. "portable electronic devices" does not make this abstract concept patent eligible. See Cal. Inst. of Tech., 59 F. Defendants argued in their initial motion that the asserted Supp. 3d at 993 ("Courts must ignore generic recitation claims of the '154 Patent "are directed to the abstract idea of hardware at step one, when the claimed hardware of receiving voting (assessment) information, searching essentially performs a method."); Intellectual Ventures I voting information, and providing results." (Motion to LLC v. Capital One Bank (USA), 792 F.3d 1363, 1366 Dismiss Case ("Initial Motion") 7–8, ECF No. 19.) (Fed. Cir. 2015) ("An abstract idea does not become Similarly, they alleged that asserted claims of the '894 nonabstract by limiting the invention to a particular © 2018 Thomson Reuters. No claim to original U.S. Government Works. 6 Case Talent Broker 6:18-cv-00080-ADA-JCM Tech. Document LLC v. Musical.ly, Inc., Slip Copy (2018) 34-2 Filed 11/08/18 Page 8 of 10 2018 WL 3019641 field of use or technological environment, such as the claimed abstract idea into patent-eligible subject matter." Internet."). Similarly, claim 12 of the '154 Patent describes Ultramercial II, 772 F.3d at 715 (quoting Alice, 134 S. "a system for providing assessment information," which Ct. at 2357). "A claim that recites an abstract idea must makes use of a processor and memory capable of: include 'additional features' to ensure 'that the [claim] (1) receiving assessment information for content; (2) is more than a drafting effort designed to monopolize searching the content using the assessment information; the [abstract idea].' " Alice, 134 S. Ct. at 2357 (quoting and (3) providing search results based on the parameters Mayo, 132 S. Ct. at 1297) (alterations in original). "Those of the search. ('154 Patent col. 22:53–23:20.) Again, this 'additional features' must be more than 'well-understood, merely describes the process of retrieving, organizing routine, conventional activity.' " Ultramercial II, 772 and outputting information—concepts that courts have F.3d at 715 (quoting Mayo, 132 S. Ct. at 1298). The routinely found to be abstract. See e.g., Intellectual "mere recitation of a generic computer cannot transform Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1313 a patent-ineligible abstract idea into a patent-eligible (Fed. Cir. 2016). invention." Alice, 134 S. Ct. at 2358. Plaintiff's argument that the use of a "specialized In a pair of recent decisions, the Federal Circuit hierarchical talent assessment process" elevates the established that "[t]he question of whether a claim element invention beyond the abstract is similarly unavailing. The or combination of elements is well-understood, routine, specification describes the process as a "voting cycle ... and conventional to a skilled artisan in the relevant field divided into time periods (Intervals) that correspond to is a question of fact." Berkheimer v. HP Inc., 2017– respective voting hierarchy categories (Categories) ... At 1437, 2018 WL 774096 at *5 (Fed. Cir. Feb. 8, 2018); the end of each Interval, a selected number of content Aatrix, 2018 WL 843288 at *5. Addressing these decisions, items having the highest voting scores among content Plaintiff argues that there exists a genuine issue of material items of a same genre of a same industry may be made fact whether the Asserted Claims contain an inventive available for voting during the next interval." ('154 Patent concept. (See generally, Motion.) The Court disagrees. 12:54–65; 13:5–8.) "For example ... voting categories for While Alice/Mayo Step 2 may sometimes present a factual a HTAP conducted for the musical industry may be in issue, "not every § 101 determination contains genuine a hierarchy, from a lowest level to a highest level, as disputes over the underlying facts material to the § follows: members of the general public (fans)(Category 101 inquiry" and the Court looks to the pleadings and 1); peer evaluators, such as other musicians in the same the intrinsic record to determine if they evince "the or related genre (Category 2); educators (Category 3); purportedly inventive concepts." Berkheimer, 2018 WL music media reporters and bloggers (Category 4); DJ's 774096 at *6–7. Here, neither the SAC nor the patents and radio program directors (Category 5); executives and themselves provide such support. music producers in the musical industry responsible for identifying new musicians who are talented (Category *8 In its prior Order, the Court determined that 6)." ('154 Patent col 9:32–41.) Thus, the HTAP describes the Asserted Claims did not describe any novel nothing more than the abstract concept of a multi-level hardware components or networks, finding that "the voting process wherein the highest rated content continues specifications clearly describe the use of 'a processor, to the next round. memory and other components typically present in general purpose computers' ('154 Patent 6:41–44) connected to existing, conventional networks such as 'the Internet, intranets, virtual private networks, wide 2. Step 2: Whether the Patents–in–Suit Include an area networks, local networks, private networks using "Inventive Concept" Sufficient to "Transform the communication protocols proprietary to one or more Nature of the Claim[s]" into Patentable Inventions companies, Ethernet, WiFi and HTTP.' ('154 Patent Having determined that the Asserted Claims are directed 7:59–62.)" (Order 10.) It further found that "[t]he to the abstract idea of organizing, differentiating and retrieval, storage, and modification of the data is similarly retrieving information, the Court now "examine[s] the conventional as it 'is not limited by any particular data limitations of the claims to determine whether the structure,' 'may be formatted in any computer readable claims contain an 'inventive concept' to 'transform' the format,' and 'may comprise any information sufficient to © 2018 Thomson Reuters. No claim to original U.S. Government Works. 7 Case Talent Broker 6:18-cv-00080-ADA-JCM Tech. Document LLC v. Musical.ly, Inc., Slip Copy (2018) 34-2 Filed 11/08/18 Page 9 of 10 2018 WL 3019641 identify the relevant information, such as descriptive text, scores") into different buckets (i.e. "voting hierarchy proprietary codes, pointers.' ('154 Patent 7:7–17.)" (Order categories") and fail to even specify the manner in which 10–11.) Plaintiff now makes several new contentions those buckets are to be defined. Courts have regularly which it claims provide an inventive concept. and routinely held that the use of generic computers to receive, manipulate, and store data—without more— Throughout its pleadings, Plaintiff relies repeatedly and is insufficient to transform an otherwise abstract idea extensively on the Federal Circuit's decision in Bascom into patentable subject matter. See Content Extraction Global Internet Services, Inc. v. AT&T Mobility LLC, and Transmission LLC v. Wells Fargo Bank, Nat. Ass'n, finding that a software tool allowing a user to control the 776 F.3d 1343, 1347 (Fed. Cir. 2014) ("The concept of type of information received over the Internet was patent- data collection, recognition, and storage is undisputedly eligible. 827 F.3d 1341, 1343 (Fed. Cir. 2016). While the well-known."); In re TLI Communications LLC Patent Circuit acknowledged that "the limitations of the claims, Litigation, 823 F.3d 607, 614 (Fed. Cir. 2016) (finding taken individually, recite generic computer, network, and claims patent-ineligible that were "directed to the Internet components," it nevertheless determined that abstract idea of classifying and storing [data] in an "an inventive concept [could] be found in the non- organized manner."); Intellectual Ventures I LLC v. conventional and non-generic arrangement of known, Capital One Bank (USA), 792 F.3d 1363, 1371 (Fed. conventional pieces." Id. at 1350. In particular, it noted Cir. 2015) ("[T]he use of a 'software' 'brain' 'tasked that the content-filter described in the patent was "a with tailoring information and providing it to the user' technical improvement over prior art ways of filtering [ ] provides no additional limitation beyond applying an content" because it prevented hacking, was independent abstract idea, restricted to the Internet, on a generic of the local hardware and software, and was customizable computer"). for different users. Id. The patent was therefore "not claiming the idea of filtering content simply applied to the *9 (Order 11.) Internet," but rather "a technology-based solution (not an abstract-idea-based solution implemented with generic In its current Opposition, Plaintiff does not offer any technical components in a conventional way) to filter new arguments regarding the novelty of the hardware content on the Internet that overcomes existing problems system, but instead focuses on alleged improvements with other Internet filtering systems." Id. at 1351. to conventional systems brought about by the HTAP software. These improvements are (1) saving memory The Asserted Claims in this case are distinguishable from and processing resources in voter computers and content those in Bascom because they are not directed to "a creator computers by placing the memory and processing technical solution to a problem unique to the Internet." burden on a server, (2) permitting remote accessibility Id. at 1351 (discussing DDR Holdings, LLC v. Hotels.com, and filtering by obviating the need to install software L.P., 773 F.3d 1245 (Fed. Cir. 2014)). Instead, they simply on voter computers and content creator computers, and describe "an abstract-idea-based solution implemented (3) increased efficiency of network traffic and decreased with generic technical components in a conventional burden on network infrastructure by reducing the volume way." Bascom 827 F.3d at 1351. Here, unlike in Bascom, of content-related items made available for voting in the Asserted Patents do not describe "how its particular subsequent voting rounds. (Opp'n 2, 10.) The first two arrangement of elements is a technical improvement over of these purported benefits are not unique to Plaintiff's prior art ..." nor can they be read to "improve[ ] an existing claimed invention and are instead inherent benefits technological process." Id. at 1350–51. As the Court held of a client-server network model—a technology that in its prior Order: was undoubtedly "well-understood, routine, conventional activity" in 2011, the priority date of the Asserted Patents. [T]he HTAP is merely the abstract idea of a multi- See e.g., Zuili v. Google LLC, 2017–2161, 2018 WL round voting process whereby "a selected number 798666, at *2 (Fed. Cir. Feb. 9, 2018) (listing "client side" of content items having the highest voting scores ... and "server side" devices in a list of "generic computer may be made available for voting during the next components performing conventional activities"); In re [round]." ('154 Patent 13:5–8.) The Asserted Claims Salwan, 681 Fed.Appx. 938, 941 (Fed. Cir. 2017) (finding therefore describe nothing more than the use of generic inter alia that a "central server" and "server for processing computer components to organize data (i.e. "voting and transferring" are "simply not enough to transform © 2018 Thomson Reuters. No claim to original U.S. Government Works. 8 CaseTech. Talent Broker 6:18-cv-00080-ADA-JCM Document LLC v. Musical.ly, Inc., Slip Copy (2018) 34-2 Filed 11/08/18 Page 10 of 10 2018 WL 3019641 the abstract idea into a patent-eligible invention.") The to 35 U.S.C. §§ 102 and 103 and concludes, without more, that "the patent claims are significantly more third is likewise insufficient to provide an inventive than the teachings of the art, thus the claims are patent concept because Talent provides no factual support for eligible." (Baker Report 13.) Nowhere does Mr. Baker its assertion that the Asserted Claims were intended to raise any issues of material fact as to whether the Asserted increase the efficiency of network traffic. In essence, Claims are anything more than "well-understood, routine, Plaintiff's invention is a means of crowd-sourcing the conventional activity." review of original content, permitting taste-makers to focus their efforts on reviewing only that content that has been previously vetted and approved by those lower in 2 Mr. Baker also states, incorrectly, that the the industry pyramid. (See '154 Patent 1:8–60.) While it is claims "are clearly not drawn to laws of true that less burden is placed on the network during the nature, natural phenomenon, nor abstract ideas" later, more-focused voting rounds, it is the use of multiple because they involve "controllers, processors, servers, with communications networks and display voting rounds that creates burdensome network traffic screen." (Baker Report 8.) This assertion is directly in the first instance. Plaintiff's alleged inventive concept contradicted by a large body of case law finding that is therefore a solution to a problem of its own making. the use of generic hardware components is insufficient Further undermining Talent's claim is the fact that it is to render an otherwise abstract idea patent-eligible. wholly unsupported by the specification which makes no *10 In sum, the Court concludes that the Asserted mention of network efficiency. Claims are drawn to patent-ineligible subject matter as they are directed to the abstract concept of a multi- Plaintiff's reliance on the declaration of Mr. Richard A. level voting process which is implemented using generic Baker, Jr. is similarly misplaced. (See Report of Richard computer and networking components arranged in a A. Baker, Jr. ("Baker Report"), ECF No. 39–5.) As an conventional manner. "When," as here, "there are no initial matter, the Court notes that Mr. Baker's opinion is factual allegations that, taken as true, prevent resolving dated December 12, 2017, which—in contrast to Plaintiff's the eligibility question as a matter of law," patent assertion that the opinion was "obtained before filing eligibility may be determined at the Rule 12(b)(6) stage. suit in this case"—was nearly a month after the initial Voter Verified, Inc. v. Election Systems & Software Complaint was filed. Furthermore, Mr. Baker does not LLC, 887 F.3d 1376, 1384 (Fed. Cir. 2018)(quoting offer his opinion as a person of ordinary skill in the art Aatrix Software, Inc. v. Green Shades Software, Inc., relevant to the Asserted Patents, but rather offers a legal 882 F.3d 1121, 1125 (Fed. Cir. 2018)). For this opinion on patent–eligibility. Nowhere in the document reason, the Court GRANTS Defendants' Motion and does Mr. Baker claim to be a POSITA nor do any of his DISMISSES Plaintiff's Complaint WITH PREJUDICE opinions rely on knowledge unique to a skilled artisan. and WITHOUT LEAVE TO AMEND. Instead, his analysis is devoted primarily to interpreting various Federal Circuit cases and USPTO guidance. As such, Mr. Baker's opinion amounts to nothing more III. RULING than attorney argument and is afforded little weight. See For the foregoing reasons, the Court GRANTS Endress + Hauser, Inc. v. Hawk Measurement Systems Defendants' Motion to Dismiss WITH PREJUDICE and Pty., Ltd., 122 F.3d 1040, 1042 (Fed. Cir. 1997) ("this WITHOUT LEAVE TO AMEND. This matter shall court has on numerous occasions noted the impropriety close. of patent lawyers testifying as expert witnesses and giving their opinion regarding ... the ultimate issue for the court IT IS SO ORDERED. to decide.") Furthermore, Mr. Baker's analysis is directed almost exclusively to a patent not asserted in this case, U.S. Patent No. 9,058,248, and relies upon statements All Citations made during prosecution—not by the examiner—but by Slip Copy, 2018 WL 3019641 the patentee 2. The sole discussion of the Asserted Patents is in relation to the examiner's initial rejection pursuant End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. © 2018 Thomson Reuters. No claim to original U.S. Government Works. 9